Many Chicago area employees with long term disability insurance often ask a lawyer whether they need to continue seeing a doctor while on disability leave, especially after an insurer denies their claim and they struggle to pay the health insurance premiums. Medical evidence is important for two reasons. First, the treatment serves to create evidence of disability. Second, many insurance policies have a requirement that you be under the regular care of a physician. But what does “regular care” mean? One view is that it may mean a type of medical care. Another view is it may refer to the time of the medical treatment. So if you became disabled, but did not start getting medical treatment until after becoming disabled, insurers may deny your claim for not being under regular care of a physician. This exact scenario occurred recently in Berg v. New York Life Insurance Co., No. 15-1410 (7th Cir. July 27, 2010).
In Berg, plaintiff began experiencing difficulty writing order tickets while working as a pit broker due to tremors. He stopped working in 2007, but was not diagnosed with essential tremor by a neurologist until three years later. The long term disability insurers approved his claim, but treated the disability as not onsetting until 2010, when plaintiff began treatment and had his condition diagnosed. New York Life and Unum argued plaintiff was not disabled under the insurance policy because he was not under the regular care of a physician until 2010, when he was treated and diagnosed. But the court ruled there was no temporal element in the definition of disabled or requirement the claimant be under the regular care of a physician. Interpreting the clause that way would be contrary to the parties’ intent. It gave an example of an amputee who was not still receiving medical treatment. Under the insurers’ view, that person would not be disabled for not being under the regular care of a physician. That would lead to absurd results, and the court would not enforce such an interpretation.
If you have been denied long term disability insurance for failure to be under the regular care of a physician, contact an experienced ERISA long term disability lawyer.